8403 v. Registrar of Motor Vehicles, 2013 CanLII 78370

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-11-19

FILE:

8403/MVIA

CASE NAME:

8403 v. Registrar of Motor Vehicles

Appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 from an Impoundment Pursuant to Section 55.1(3) of the Act.

Applicant

Applicant

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

ANTOINE AOUAD, M.D., Member

APPEARANCES:

For the Applicant:

Self-represented

For the Respondent:

SONIA DE SANTIS, Agent

Heard by teleconference:

November 12, 2013

REASONS FOR DECISION

A hearing was held on November 12, 2013, to consider the Applicant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA” or the “Act”).

Pursuant to section 50.2 (5,) the Tribunal CONFIRMS THE IMPOUNDMENT. As a result, the Applicant’s motor vehicle will remain detained at the impound facility for 45 days.

BACKGROUND

A motor vehicle was impounded pursuant to section 55.1 of the Act and the impoundment was appealed by the owner. The owner, motor vehicle, and date of appeal in this matter are as follows:

Owner: The Applicant

Motor Vehicle: 2010 PONT VIB (the “vehicle”)

Date of Appeal: October 23, 2013

As a preliminary matter, the Registrar’s Agent requested that the Tribunal accept references to the Officer’s notes which could be submitted after the hearing or in the alternative to adjourn.

The Tribunal ruled that any mention of the notes would be hearsay, and asked the Applicant if she consented to an adjournment.

The Applicant’s request to proceed was granted

All documents were entered into evidence as exhibits with the consent of both parties

ISSUES

As set out in the Applicant’s request for hearing (Exhibit #1), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, all as provided in sections 50.2(3)(a) (c) and (d) of the Act.

Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?

FACTS

Evidence for the Applicant

A summary of the Applicant’s evidence follows.

The Applicant’s written submission filed with the Tribunal in support of the appeal was entered as Exhibit # 1. In the Notice of Appeal, the Applicant wrote that the vehicle was taken without her knowledge or consent, while she was out of the country. The Applicant further states that the incident is causing exceptional hardship in that the vehicle is needed to for her to get to and from work as well as carry to take her child to school.

During the hearing, the Applicant’s reiterated the comments in the Notice of Appeal, testifying that: she was out of the country when the vehicle was taken without her permission; she will not be able to afford the cost of the impoundment; she has had to borrow vehicles; and she has missed days of work.

In cross-examination, the witness confirmed that she was aware that her common-law’s spouse was suspended and that they have been living live together “on and off.” Further the Applicant claims that the suspended driver took the car without her permission, and that she has not laid charges against him.

According to the Applicant she has missed some work days and was not able to take her son to school because she was not able to borrow a car.

The Applicant testified that she left the keys at home, where her common law spouse is also living, nonetheless he was aware he was not to drive her car.

With respect to the laying of charges the Applicant attested that she does not want to cause any further emotional issues to her son, who is already acting up because he misses his father while he is incarcerated.

The Applicant has used her sister’s and her father’s vehicles while they have been away.

The Applicant affirmed that she has missed some chiropractic appointments, but there are no major health issues either with her or her son. She further stated that there are 911 services available in the area.

By way of clarification the Tribunal asked the Applicant why, she would leave the leys a home knowing that her spouse was suspended. The Applicant replied: “Because he had never taken them before and I trusted him.”

Evidence for the Registrar

A summary of the Registrar’s evidence follows.

The documents tendered by the Registrar and admitted into the record on consent of the Applicant were as follows:

1. Copy of the Ministry of Transportation records indicating that, among other things, the impounded motor vehicle is registered in the name of the Applicant as owner;

2. A copy of the notice prepared by the officer who detained the impounded motor vehicle indicating, among other things, that the vehicle at the time it was detained was being driven by the person convicted of the offence under the Criminal Code of Canada outlined in point 4 below;

3. Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;

4. Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Fail To Stop For Police Officer under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until June 24, 2014.

The Registrar did not call any witnesses.

LAW

Section 55.1 of the Act provides that a motor vehicle may be detained and impounded, and section 50.2 provides the motor vehicle owner’s right of appeal to the Tribunal. The Tribunal on the appeal may, pursuant to subsection 50.2(5) of the Act, confirm the impoundment or order the Registrar to release the motor vehicle. Pursuant to subsection 50.2(8), the decision of the Tribunal is, final and binding.

Subsection 55.1(3) of the Act states:

(3) A motor vehicle detained under subsection (1) shall be impounded as follows:

1. For 45 days, if there has not been any previous impoundment under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.

2. For 90 days, if there has been one previous impoundment under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.

3. For 180 days, if there have been two or more previous impoundments under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.

Regulation 631/98 provides that the prescribed period, referred to above, is two years.

The owner may appeal the impoundment on only four specific grounds set out in subsection 50.2(3):

(3) The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the Tribunal may order the Registrar to release the motor vehicle are,

(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;

(b) that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension;

(c) that the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension; or

(d) that the impoundment will result in exceptional hardship.

The Applicant here appeals on the basis of section 50.2(3)(d).

The Shorter Oxford English Dictionary, 3^rd ed. defines “exceptional hardship” as follows:

Exceptional: Of the nature of or forming an exception; unusual.

Hardship: 1. The quality of being hard to bear; hardness; severity. 2. Hardness of fate or circumstance; severe toil or suffering; extreme privation.

Also, where the owner appeals on the ground of exceptional hardship, subsection 50.2(4) provides:

(4) Clause (3) (d) does not apply if there was a previous impoundment under section 55.1 with respect to any motor vehicle then owned by the same owner.

Section 10 of O. Reg. 631/98 provides the criteria to be considered and those not to be considered in determining the appeal under this section. First, the Tribunal must consider whether no alternative exists for the impounded vehicle and if there is no alternative, then whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle or a threat to public health and safety or to the environment or property of a community in whose service the vehicle is ordinarily used.

Second, the section provides that the Tribunal may not, except in certain circumstances, consider certain factors:

• inconvenience to any person, financial or economic loss to any person,
• loss of employment or employment opportunity to any person, or
• loss of education or training.

These factors may be considered if the owner demonstrates that

• there is no alternative to the vehicle available,
• the loss will be immediate, significant and lasting,
• the impact will be on a person ordinarily transported by the vehicle and
• the impact of the loss will be on someone other than the suspended driver and will not be the result of a loss by the suspended driver of the type described above.

All elements of the grounds of appeal must be proven on the balance of probabilities by the owner of the vehicle.

APPLICATION OF LAW TO FACTS

In closing, the Applicant asserted that she has incurred extra costs, which have caused financial hardship.

In her summary statement the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar.

The Registrar’s Agent maintains that there is no doubt the driver was under suspension.

According to the Registrar’s Agent the Applicant left the keys at home enabling the suspended driver to take the keys and use the vehicle. Further, the Registrar’s Agent maintains that the vehicle was not stolen as the Applicant believes that her spouse would have returned the vehicle, and she has not laid charges against him.

With regards to exceptional hardship, Registrar’s Agent, notes that there are alternate modes of transportation available to the Applicant, she has been able to borrow vehicles both from her sister and her father.

The Registrar’s Agent pointed out that the Applicant has missed time off work, but there is no evidence that the loss is significant and long lasting.

The only apparent loss are the impoundment fees which due to the fact the law allows the Applicant to recover from the suspended driver, cannot be considered by the Tribunal.

Although the Applicant has missed some chiropractic appointments, there are no health and safety issues in that the Applicant confirmed that there are 911 services available in her area.

The onus is on the Applicant to establish his grounds of appeal as provided in section 50.2(3)) of the Act.

The Tribunal concurs with the Registrar’s Agent that evidence shows that the person having care and control of the vehicle at the time of impoundment did not in fact have a valid driver’s licence.

The Tribunal will dispense with due diligence as a possible ground for appeal, as the Applicant testified that she was aware of the suspension.

In regards to the possibility that the car could have been stolen, the evidence indicates that the suspended driver is the Applicant’s common law spouse who at the time was residing in the Applicant’s house.

The argument that a suspended driver has stolen the vehicle is one that is easy to assert. The Tribunal must use a great deal of circumspection in considering this argument. One of the indicia that a vehicle has been stolen, of course, is the laying of charges. Another is the lack of a relationship between the owner and the driver to support an inference that the owner has lent the vehicle to the driver. It does not flow from these indicia that one family member cannot steal a vehicle from another. To complicate the analysis, in a close family relationship, the laying of charges may result in such bad feelings that the owner does not want to contemplate such action. The Tribunal must consider the totality of the facts to determine if, in fact, the vehicle was stolen or if the argument is being used opportunistically. There may be instances when specific permission for use was not given but the overall facts support a conclusion that use of the vehicle by the suspended driver is acquiesced in by the owner.

In this matter the Tribunal accepts the Applicant’s reluctance to lay charges against her common law spouse, nonetheless the Applicant was aware of the suspension and yet the keys were accessible to her spouse, while she was out of the country. The Applicant’s explanation for her lax behaviour is that she trusted her spouse, as he had never driven the car before. Given that the Applicant made no effort to hide the keys the Tribunal finds that consent was implicit and thus finds that the vehicle was not stolen at the time of impoundment, and therefore the criteria of section 50.2(3)(a) of the Act has been not met.

Section 10 of Regulation 631/98 provides the criteria to be considered and those not to be considered in determining exceptional hardship:

10. (1) In determining whether exceptional hardship will result from an order to impound under section 55.1 of the Act, the Tribunal shall consider whether no alternative to the impounded motor vehicle is available…

Only if no alternative transportation exists does the Regulation permit the Tribunal to proceed to consider other enumerated factors. Looking at the Applicant’s current situation, it is clear that the Applicant has alternate mode of transportation, albeit inconvenient. The Applicant has been able to use her father and sister’s car.

Thus, having found that an alternative to the impounded vehicle exists, the Tribunal’s enquiry must come to an end and the Applicant’s defence of exceptional hardship must fail.

The Tribunal acknowledges that the Applicant did miss time from work, yet without proof of loss, the Applicant concurs with the Registrar’s Agent the any losses are not significant and long lasting.

The Tribunal cannot assess exceptional hardship based on the cost of impoundment because the cost of impoundment is not a factor to be considered in section 10 of the Regulation.

As such, the Tribunal finds that the criteria of Section 10 (1) of the Ontario Regulation 631/98 are not met.

DECISION

After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal confirms the impoundment of the Applicant’s motor vehicle, and it will remain at the impound facility for 45 days.

LICENCE APPEAL TRIBUNAL

Antoine Aouad, M.D., Presiding Member

Released: November 19, 2013